Michigan Law Review最新文献

{"title":"The \"Innocence\" of Bias","authors":"Osamudia R. James","doi":"10.36644/MLR.119.6.INNOCENCE","DOIUrl":"https://doi.org/10.36644/MLR.119.6.INNOCENCE","url":null,"abstract":"A Review of Biased: Uncovering the Hidden Prejudices that Shapes What We See, Think, and Do. by Jennifer L. Eberhardt.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682191","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Limits of Deliberation About the Public's Values","authors":"M. Seidenfeld","doi":"10.36644/MLR.119.6.LIMITS","DOIUrl":"https://doi.org/10.36644/MLR.119.6.LIMITS","url":null,"abstract":"A Review of The Public's Law: Origins and Architecture of Progressive Democracy by Blake Emerson.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682227","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Young and Dangerous: The Role of Youth in Risk Assessment Instruments","authors":"Ingrid Yin","doi":"10.36644/mlr.120.3.young","DOIUrl":"https://doi.org/10.36644/mlr.120.3.young","url":null,"abstract":"States are increasingly adopting risk assessment instruments (RAIs) to help judges determine the appropriate type and length of punishment for an offender. Although this sentencing practice has been met with a wide variety of scholarly criticism, there has been virtually no discussion of how RAIs treat youth as a strong factor contributing to a high risk score. This silence is puzzling. Not only is youth undoubtedly the most powerful risk factor in most RAIs, but youth also holds a special place in the criminal justice system as a “mitigating factor of great weight.” This Comment presents the first in-depth critique of RAIs with respect to their treatment of youth. It argues that, as currently designed and implemented, RAIs both contradict longstanding and widespread views about the proper role of youth as a factor in punishment and undermine efforts to craft proportionate sentences consistent with principles of justice and modern social science.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69683210","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Remediating Racism for Rent: A Landlord’s Obligation Under the FHA","authors":"Mollie Krent","doi":"10.36644/mlr.119.8.remediating","DOIUrl":"https://doi.org/10.36644/mlr.119.8.remediating","url":null,"abstract":"The Fair Housing Act (FHA) is an expansive and powerful piece of legislation that furthers equal housing in the United States by ferreting out discrimination in the housing market. While the power of the Act is well recognized by courts, the full contours of the FHA are still to be refined. In particular, it remains unsettled whether and when a landlord can be liable for tenant-on-tenant harassment. This Note argues, first, that the FHA does recognize liability in such a circumstance and, second, that a landlord should be subject to liability for her negligence in such a circumstance. Part I illustrates how the purpose and text of the FHA and analogous civil rights provisions suggest that a landlord should be held liable for her response to tenant-on-tenant harassment. Part II analyzes the standards of liability for tenant-on-tenant harassment that currently exist in the context of the FHA. Part III argues that a negligence standard of liability best accounts for the special status of the home and the unique nature of the landlord-tenant relationship.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69683352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fee Simple Failures: Rural Landscapes and Race","authors":"Jessica Shoemaker","doi":"10.36644/mlr.119.8.fee","DOIUrl":"https://doi.org/10.36644/mlr.119.8.fee","url":null,"abstract":"Property law’s roots are rural. America pursued an early agrarian vision that understood real property rights as instrumental to achieving a country of free, engaged citizens who cared for their communities and stewarded their physical place in it. But we have drifted far from this ideal. Today, American agriculture is industrialized, and rural communities are in decline. The fee simple ownership form has failed every agrarian objective but one: the maintenance of white landownership. For it was also embedded in the original American experiment that land ownership would be racialized for the benefit of its white citizens, through acts of colonialism, slavery, and explicit race-based exclusion in property law. Today, rather than undoing this racialized legacy, modern property rules only further concentrate and homogenize rural landownership. Agricultural landownership remains almost entirely— 98 percent—white. This is a critical racial justice issue that converges directly with our impending environmental crisis and the decline of rural communities more generally.This Article builds on work of rural sociologists and farm advocates who demonstrate, again and again, that despite a pervasive narrative of rural places dying for want of population and agricultural systems too far gone for reform, the reality is a crowd of emerging farmers—and farmers of color in particular— clamoring for access. Existing policy efforts to support beginning farmers have focused primarily on supporting a few private land transactions within existing systems. This Article brings property theory to the table for the first time, arguing that property law itself is not only responsible for the original racialized distributions of agricultural land but also actively perpetuates both ongoing racialized disparities and the currently industrialized and depopulated rural landscape. This Article deconstructs our most fundamental land-tenure choice—the fee simple itself—and calls on our collective legal imagination to develop more adaptive, inclusive, and dynamic land-tenure designs rooted in these otherwise overlooked rural places.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507613","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Can Prosecutors End Mass Incarceration","authors":"R. Barkow","doi":"10.36644/MLR.119.6.CAN","DOIUrl":"https://doi.org/10.36644/MLR.119.6.CAN","url":null,"abstract":"","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69681590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rethinking the Reasonable Response: Safeguarding the Promise of Kingsley for Conditions of Confinement","authors":"Hanna Rutkowski","doi":"10.36644/MLR.119.4.RETHINKING","DOIUrl":"https://doi.org/10.36644/MLR.119.4.RETHINKING","url":null,"abstract":"Nearly five million individuals are admitted to America’s jails each year, and at any given time, two-thirds of those held in jail have not been convicted of a crime. Under current Supreme Court doctrine, these pretrial detainees are functionally protected by the same standard as convicted prisoners, despite the fact that they are formally protected by different constitutional amendments. A 2015 decision, Kingsley v. Hendrickson, declared that a different standard would apply to pretrial detainees and convicted prisoners in the context of use of force: consistent with the Constitution’s mandate that they not be punished at all, pretrial detainees would no longer need to demonstrate that officials subjectively intended to harm them, only that the force they applied was objectively unreasonable. Courts of appeals have begun to extend this shift to claims involving conditions of confinement, but the promise of that move is threatened by the availability of a cost defense for officials who respond reasonably to detainees’ needs given the resource constraints they face. This Note argues that pretrial detainees can only be adequately protected from punishment if the reasonable response includes an affirmative duty to notify superiors of those constraints.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69681647","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Will Legal Education Change Post-2020?","authors":"H. Gerken","doi":"10.36644/MLR.119.6.WILL","DOIUrl":"https://doi.org/10.36644/MLR.119.6.WILL","url":null,"abstract":"The famed book review issue of the Michigan Law Review feels like a reminder of better days. As this issue goes to print, a shocking 554,103 people have died of COVID-19 in the United States alone, the country seems to have begun a long-overdue national reckoning on race, climate change and economic inequality continue to ravage the country, and our Capitol was stormed by insurrectionists with the encouragement of the president of the United States. In the usual year, a scholar would happily pick up this volume and delight in its contents. This year, one marvels at the scholars who managed to finish their reviews on time. The editors have asked me to reflect on how 2020, particularly the pandemic, will change legal education. Like most institutions, law schools have undergone a stress test over the past year. During the early days of the pandemic, every school put a centuries-old teaching tradition online, often within the space of a single week. Most thought that the pace of change would slow down in April. It didn’t. For months, COVID generated crisis after crisis. Schools had to deal with budgetary shortfalls, a stock market crash, job losses, postponements of the bar exam, the loss of virtually all of their international students, and the terrible hardships that COVID caused for students, staff, and faculty. To top it all off, any school that—like Yale—brought its students back in the fall for in-person learning had to invent new forms of teaching for the classroom and an entirely new set of communal rules for campus interactions. Even though the pandemic has not yet lifted, one can already make out the ways in which law schools’ adaptations to the pandemic will eventually be structured into legal education’s gene sequence.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69682486","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Social Norms in Fourth Amendment Law","authors":"Matthew Tokson,Ari Waldman","doi":"10.36644/mlr.120.2.social","DOIUrl":"https://doi.org/10.36644/mlr.120.2.social","url":null,"abstract":"Courts often look to existing social norms to resolve difficult questions in Fourth Amendment law. In theory, these norms can provide an objective basis for courts’ constitutional decisions, grounding Fourth Amendment law in familiar societal attitudes and beliefs. In reality, however, social norms can shift rapidly, are constantly being contested, and frequently reflect outmoded and discriminatory concepts. This Article draws on contemporary sociological literatures on norms and technology to reveal how courts’ reliance on norms leads to several identifiable errors in Fourth Amendment jurisprudence.Courts assessing social norms generally adopt what we call the closure principle, or the idea that social norms can be permanently settled. Meanwhile, courts confronting new technologies often adopt the nonintervention principle, or the idea that courts should refrain from addressing the Fourth Amendment implications of new surveillance practices until the relevant social norms become clear. Both approaches are flawed, and they have substantial negative effects for equality and privacy. By adopting norms perceived as closed, courts may embed antiquated norms in Fourth Amendment law—norms that often involve discrimination on the basis of race, gender, or class. By declining to intervene when norms are undeveloped, courts cede power over norm creation to companies that design new technologies based on data-extractive business models. Further, judicial norm reliance and nonintervention facilitate surveillance creep, the extension of familiar data-gathering infrastructures to new types of surveillance.This Article provides, for the first time, a full, critical account of the role of social norms in Fourth Amendment law. It details and challenges courts’ reliance on social norms in virtually every aspect of Fourth Amendment jurisprudence. And it explores potential new directions for Fourth Amendment law, including novel doctrinal paradigms, different conceptions of stare decisis in the Fourth Amendment context, and alternative institutional regimes for regulating government surveillance.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507597","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution","authors":"William Treanor","doi":"10.36644/mlr.120.1.case","DOIUrl":"https://doi.org/10.36644/mlr.120.1.case","url":null,"abstract":"At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris was an honest scrivener. No prior article has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law.This Article undertakes that comparison. It shows that Morris made fifteen significant changes to the Constitution and that many of the Constitution’s central elements were wholly or in critical part Morris’s work. Morris’s changes strengthened the national executive and judiciary, provided the textual basis for judicial review, increased presidential accountability through an expansive conception of impeachment, protected private property, mandated that the census report reflect “actual enumeration,” removed the constitutional text suggesting that slavery was just, and fought slavery’s spread.This Article also shows that Morris created the basis for the Federalist reading of the Constitution. Federalists—notably including fellow Committee member Alexander Hamilton—repeatedly drew on language crafted by Morris as they fought for their vision of the Constitution. Because the changes Morris made to the Convention’s agreed language were subtle, both Republicans and Federalists were able to appeal to text in the great constitutional battles of the early republic. Modern originalists claim that the Republican reading reflects the original understanding of the Constitution, but this Article argues that the largely dismissed Federalist reading explains words, phrases, and punctuation that the Republican reading ignores or renders unintelligible. By contrast, the Federalist reading of the Preamble (which they saw as a grant of substantive power), the Article I and Article II Vesting Clauses (which were contrasted to argue for expansive executive power), the Article III Vesting Clause (which they read to mandate the creation of lower federal courts), the Contracts Clause (which they read to cover public as well as private contracts), the Impeachment Clause (which they read to cover both nonofficial and official acts), and the “law of the land” provision (which they construed as a basis for judicial review) gives effect to Morris’s—and the Constitution’s—words.","PeriodicalId":47790,"journal":{"name":"Michigan Law Review","volume":null,"pages":null},"PeriodicalIF":2.7,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138507600","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}